Little steps that protect our freedom

By Rex Smith

Published 4:49 pm, Friday, March 22, 2013

One thing American newspaper editors don't wake up worrying about is censorship. We don't go to work each morning figuring that the government is going to shut down our presses or that a judge is going to bar us from publishing a story.

Our press is more likely to be held up by a power outage on deadline, which hasn't happened here in years, than a judge's order. In America, the freedom to publish without government censorship is about as secure as anything that the Constitution's Bill of Rights promises.

Which is why it was front-page news this week when a judge in Warren County tried to block Lifetime Network from airing a movie. Granted, Lifetime is not typically a place you turn for a sober discussion of civic issues. Its programming includes such sleaze-edged series as "Army Wives" and "Preachers' Daughters." But its rights under the Constitution are just as robust as those granted to the most serious journalist. And that's the kind of free speech protection our Founding Fathers intended.

What drew the Lifetime Network into the courtroom of state Supreme Court Justice Robert J. Muller was a motion filed from the state prison in Dannemora by Christopher Porco, the ax murderer from Delmar. Porco is serving a 46-year sentence for killing his father and maiming his mother back in 2004, while he was a student at the University of Rochester.

He's a bright and good-looking young man, now 29, though his appeal may have been exaggerated a bit in the movie "Romeo Killer: The Chris Porco Story." Then again, some people are drawn to sociopaths. At the time of his trial, a lot of folks said he couldn't possibly have done the awful deed, and complained that that this newspaper shouldn't have reported so aggressively the findings of investigators who dug up evidence that, in fact, he did.

But no agent of the government tried to stop us from publishing anything about Porco, and you wouldn't think anybody would take too seriously an effort to stop a dramatization of a case that is so open and shut that the Supreme Court has shot down a final appeal.

But Chris Porco has a lot of time on his hands. Arguing on his own behalf, he convinced Judge Muller that Lifetime shouldn't be allowed to use his name and likeness without his authority.

There was a problem with the judge's ruling, though: It flies in the face of a massive body of case law that protects publishers — in this case, that would include a TV network — from government intrusion in their decisions.

The law barring such prior restraint was established on more significant grounds than the threat to Chris Porco's good reputation, such as there might be for a guy who took an ax to mom and dad. In 1971, for example, the Supreme Court refused to stop The New York Times and The Washington Post from publishing the Pentagon Papers, a classified study of American decision-making in the Vietnam War — a decision the court rendered even though a majority of the justices believed that the nation's interests would be harmed by the articles.

Prior restraint is permitted, the court ruled then, only when "direct, immediate, and irreparable damage to our Nation" would "surely result."

Chris Porco would seem to be little threat to the Republic. Far more of a threat, I'd say, is posed by judges who seem not to recognize that freedom can be eroded by tiny steps, like a ruling that would bar a TV network from airing a cheesy docudrama. (That description comes from our culture writer, Amy Biancolli, who has seen "Romeo Killer," as Porco has not.)

Actually, the value of "Romeo Killer" may lie in the ruling of Justice Elizabeth A. Garry, an appellate judge sitting in Albany. On Thursday, she vacated Muller's order, enabling the movie to be shown Saturday night.

It was a tiny hearing in Garry's chambers — Porco arguing his points from prison by phone, lawyers for Lifetime and court clerks present, along with the judge and (thanks to a clear stance in favor of open courtrooms by Appellate Division Presiding Justice Karen Peters) Times Union senior writer Brendan J. Lyons. But it is in such venues that freedom is either protected or lost, day by day.

Big rulings like the Pentagon Papers case typically come along once in a generation. Opportunities for courts to affirm or interfere with First Amendment rights arise every day. It's why networks and newspapers have lawyers, who mostly keep busy not defending us against libel claims, which are rare, but rather arguing on our behalf to open files and courtrooms and to make sure big stories can be told.

Elsewhere in the world, the media must struggle constantly against government interference, risking incarceration and even death for what they publish or air.

It's a mark of the vitality of our freedom that the threat here this week arose from a pathetic guy who was himself behind bars, and that our protection came from the government itself.